Houston lawyer crusades against court costs

Jani Maselli Wood Wednesday March 5, 2015 at the Harris County Public Defender's Office. Wood is an appellate attorney who is fighting to get court costs down for indigent defendants by arguing that the many, many "court fees" don't actually go to fund any courts, and thus, are unconstitutional. Appeals courts have recently begun siding with her. (Billy Smith II /Houston Chronicle)

Jani Maselli Wood Wednesday March 5, 2015 at the Harris County...

Houston attorney Jani Maselli Wood scanned the itemized list of "court costs" that people pay when they get in trouble with Texas law to see how much her indigent client owed even while sitting in a prison cell.

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Among other things her client was obligated to pay was a $250 DNA record fee, money that was divided to fund the state highway system and an account that issues criminal justice grants.

Maselli didn't think the fee was a legitimate court cost, and relying in part on a 70-year-old case, Maselli convinced Houston's 1st Court of Appeals that it was a tax collected by the judiciary. Attorneys for the state appealed that ruling and she is now scheduled to argue the issue before the highest court in Texas.

The defense attorney's attempts to hold the state accountable for the money collected as "court costs" may sound quixotic, but the courts are taking her challenges seriously.

It could change the way Texas collects money and pays the bills.

"I'm trying to make sure the money goes to where you think it goes," Maselli said. "If you look behind the court costs, statutorily, where the money goes, it rarely goes back to the courts."

The courts have defined "court costs" as a recoupment of the cost of criminal prosecution. Maselli is arguing against fees that sound like they are connected to criminal cases, but which she says are not.

One of the fees charged to defendants after trial is a 14-item bundle called the Consolidated Court Cost.

Maselli has followed the money for each of the fees in that bundle to find they support things like the state highway fund, a criminal justice institute at Sam Houston State University or end up in biggest pot of all, the state's general revenue fund.

"Only a small amount, like 12 percent, goes to the courts," Maselli said. "It's just not connected."

Whether it's connected is now a question for the courts, as supporters of the levies say criminal justice has to be viewed as a whole, and the court costs are simply "user fees."

"As a general principle, folks who are in the system should pay at least some of the freight," said Rob Kepple, executive director of the Texas District and County Attorneys Association. "So the question will center on how broadly you define that."

In times past, legislators who could not find funding for their projects tacked on another "court fee."

A large amount of fees caused a backlash, and the practice fell out of favor. But many of the fees are still in effect because they are connected, Kepple said.

He said Crime Victims funds and CrimeStoppers are both integral programs that should be paid by defendants.

Some of the money from the bundled fee goes to the Department of Public Safety, which Kepple said is directly related to the criminal justice system and perfectly appropriate.

"To my mind, it's not offensive at all to include that in the cost of going to court on those cases," he said.

Maselli argues that those kinds of costs fall under "law enforcement," not court costs.

"It's easy to not raise taxes and just create fees and costs and fines," she said. It also opens law enforcement agencies to criticisms of policing for profit, she said.

Maselli began chipping away at fees in 2011 when she argued that her client was entitled to an invoice or an actual itemized bill of the court costs.

A year later, Maselli won a ruling awarding her client $234. In that case, Manley Johnson's family had deposited money in his prison commissary account for things like toothpaste and food. Harris County officials were about to take a percentage of money out of the account to pay Johnson's court costs.

When Maselli wanted an invoice, there wasn't one.

Texas' 14th Court of Appeals ruled that while it was permissible to withdraw money from the account, there had to be an actual bill of costs. When the case went to the Texas Court of Criminal Appeals, Maselli lost.

But the result was two-fold: Harris County suspects now get itemized bills and using those lists, Maselli began attacking the fees individually.

"For my clients, I want to make sure they're charged fairly," Maselli said. "In the larger scheme of things, you want to make sure that the courts are funded and the money goes to that - and not to balance the state's budget."

One of the cases Maselli relies on in her briefs is a 1942 prohibition on a $1 fee for law libraries. In that case, the court worried that court fees would lead to levies to pay for courthouses, police cars and even roads.

Earlier this year, an appeals court agreed with Maselli that a court cost for a DNA record fee is an unconstitutional tax that violates the separation of powers.

"They ruled it turned the courts into a tax collector," Maselli said. The issue is now set to be heard by the state's highest court.

Several experts have said Maselli's work could have statewide implications if some fees are deemed unconstitutional.

Now retired, former Office of Court Administration chief Carl Reynolds has been following the issue closely.

"It's been a really interesting trajectory in Texas," Reynolds said. "(Maselli) has succeeded in raising is the whole issue of the Consolidated Court Cost statute which funnels money off to various places, some of which have a very tenuous connection to the court system, if any."

When he was a committee chair of the Conference of State Court Administrators, Reynolds authored a paper called "Courts are not Revenue Centers."

"The thrust of the paper is that state court leaders need to resist the impulse, which is a very common impulse, to use courts for revenue," Reynolds said. He said an inherent tension exists between courts collecting money and government programs that always need funding.

"You don't want the court system to have that kind of perverse financial incentive to find people guilty and fine them," he said. "You also don't want the state or localities to funnel money away from the court system and put it just wherever."